BABCOCK tl. UNITED STATES.
ties, and each and everyone different from the others. How are the accused to know what particular paper, or what particular article of the paper, is referred to in the indictment? The accused are entitled to be informed of the specific charge made against them, and it must be sullicientlyexplicit and definite to enable them to prepare their defense, and present their evidence; and further, to enable them in any future prosecution for the same offense to make the plea of autre lois acquit or autre lois convict. This indictment is clearly defective in this respect; nor can it be helped out by means of a bill of particulars. The offense charged is an infamous crime. under the decision of the supreme court, (Mackin v. U. S. 117 U. S. 348, 6 Sup. Ct. Rep. 777,; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935j) and the accused cannot be put upon trial except upon the presentment of a grand jury, (Article 5, Amend. Const. U. and all the essentials of the accusation must be presented by the grand jury in their indictment; and neither the court nor parties by consent can add to or take from the indictment, (Ex parte Bain, 121 U. S. 1,7 Sup. Ct. Rep. 781.) tt is not sufficient forthe.grand jury to allege that the contents of the paper are too obscene to bespread upon the records, and omit every means of identification. Surely the objectionable matter can be described or identified in some way, without giving offense to the court, or defiling its records with scandalous and indecent matter. The date of the paper, the title of the article, or its general tenor and purport, couched in decent language, would serve to make the charge definite and certain. The demurrer to the indictment must be sustained.
BABCOCK 11. UNITED STATES.
(Oireuit Oourt, D. Oolorado. May 5, 1888.)
PERJURY-CONSTRUCTION Oll' STATUTES-PROVING ON
The provisions of Rev. St. U. S_ §!:i 5392, 5393. defining. perjury and subornation of perjury, were reaffirmed in the Revision of 1874. and. being_general in terms, were not repealed pro tanto by the special act of 1857. (11 U. S. St. , at Large, 250,) I?roviding for oaths, affirmations. or affidavits made or taken before any register or receiver of any local land-office, or used or filed in any such office, in respect to any right, claim, or title to public]ands.
2. SAME-INDICTMENT. An indictment for subornation of perjury charged that defendant did soand pretending to be licit, s.l1born, and procure an unknown person :Mary L. Pratt, who then and there took an oath admiDlstered .by the register of a local land-office, she, the said person, not believing the same to be true, as defendant then and there well knew, and that she did take the oath,signed and subscribed the affidavit, not believing it to be true, all of which defendant wed knew. It also set out the substance of the affidavit, and alleged wherein. it waf:l false. Held, that the indictment was clearly sufficient. lJ. SA.:ME-JUDICIAL NOTICE. An indictment for subornation of perjury in procuring false affidavits to be subscribed before the register and receiver of a local land-office, need not aver that suoh officers were competent to administer an oath; as the court .wiU take judicial notice that they are, under the statute, so authorized.
The evidence showed that defendant procureo certilin unKnown persons to go before the local land-office at-Denver and swear tbaf:l1davml required for entering government land; that these .persons made the ,applications in the name,s qf persons, who.:were not preseIlt, and, in some, in the state; that defendant did this by witbthe ,persons whose names were used, and that he obtained the receipts for them; and received money forhJs silrvices. While'it Was notishown that he was persoIlally presenkexcep't in ,one instance, when these false ,affidavits wer-e sworIl to, yet they wete all made by his procurement, with knowledge of their falsity, and with knowledge that the perso'ns making them knew theywete false. Held, that a verdict of guilty was amply sustained by the evidence.
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3. CmMINAL LAW-VERDICT:-INDICT?d:ENT. Where an indictment contains several counts. and a general verdict of guilty upon all is returned·. if any be good, judgment may be entered upon the verdict.' ' . , 6. The objection of duplicity in an'indictment comes too late after verdict , and judgment.
Error to District Comt. L. R. Rhodes, f6r in error. H.W. Hobaon, for the United States.
BREWER"J. Defendant was indicted in, the district ,court for subornation,of perjury. On that indictment he was tried, convicted, and sen,tenced" and. therefrom ,sued out a writ of error, to this, court. The· indictment contained sixteen counts charging eight different offenses, each offense being presented in two separate counts, framed under different sections of the statutes. The substance of the offenses charged consisted in the defendant's procuring certain unknown persons to go before the to affidavits required officers of the local laud-office at Denver, and for entering land. Ofihe guilt of thedefendaritthere can be, under the testimony, little. doubt. .In anumber of cases ,the original affidavits filed in the land-office were pre:>ented. These pilrport to be signed and sworn to by the applicant, before the registero.r ,receiver. III .fact, the applicants were not present, and, in some instanoes;were not in the state. one instance,at least, the. pretendedapplicaIlt!-the party making the oath,'-:"was accompaniedpy the defenda,ntj ,j\nd in all the instances , he agreed with -the applicants for a consideration to procure the entries and informed them that their p'ersonal'attendan6E(was unnecessary, and that he won1dprocure the receipts.without such He did procure the receipts and delivered them to the applicants. Two of the were residents of Illinois, and sent motley to him for that pur: correspol1q.ing with him either directly or through a friend. While in only one instance is it shown that he was personally present when 'these false affidavits wereswom to,yethis agreements with tpe applihis representations as to what he could do, what was in fact done, and the payment of money to him' therefor, made it beyond question . that hedid'infact procure some unknown parties appear, and make these .false .. Thut the persons appearingalld 'making these
false affidadts may haveborr.e the same view of the repeated instances,bighly irnprobabl'e, and'also entirely immaterial, for; they were not the real applicants,-the parties' for whom the entries were made, or for whom he was acting. Counsel insists that there is no proof that the lands thus entered were public lands to entry, and therefore that the testimony is insufficient to sustain the verdict, because a mere voluntary affidavit, however false, cannot be the basis of a charge of perjury. I think that counsel are mistaken, and that the testimony is sufficient. Beyond the general statement of the defendant that he would enter for the parties land in that part of Colorado, and the fact that the entries were made, is a. direct certificate of the register at the foot of the applications that the land was surveyed land; which the party might lawfully enter, and that there was no prior valid adverse right thereto. This is clearly sufficient to show that the affidavits were not voluntary oaths, but were a'ffidavits to be used, and they werein fact used, in a legal proceeding before the land department. These considerations as to the sufficiency of the testimony and the <,ertainty of defendant's guilt lead now to the questions on the indictment, whose sufficiency is the principal ground of challenge by counsel. The first eight counts are based upon sections 5392 and 5393 of the Revised Statutes; the first defining perjury, and the latter providing that one procuring another to commit perjury is guilty of suborhation. Now; section 5392 is general in its teruls; applying to all cases in which a false oath or false testimony is taken or given before any competent tribunal, officer, or person. This section is of long standing. In 1857 an act was passed which is styled" An act in addition to an act more effectually to provide for the punishment of certain crimes," etc. 11 U. S. St. at Large, 250. The fifth section provides specifically for oaths, affirmations, or affidavitsinade or taken before any register or receiver of any local iandin resped to any right, office, or used or filed in:' any such claim, or title to any of the public anddedares that the person guilty of corrupt swearing therein shall upon conviction be liable to the punishment prescribed for the offense of perjury. Now, the contention of counsel is that this, being a later and speCialact, so far as all these cases before a local land-office are concemed, the provisions of the general statute; and that these eight counts, being framed under the general statute, and not containing lill the details mentioned in thespecialstatute, must be adjlidgedfatally defective. The decision of this question is really not essential to the disposition of this case, for it is settled law in the federal coude that where an indictment contains several counts, and a general verdict of guilty upon all is returned, if any count be good, judgment may be ente-red, upon the verdict. U. S. v.Jenson, 15 Fed. Rep. 138; U. S. v. Simmons, 96 U. S. 360; 1 Bish. Crini. Proc. § 1015; Whart. Crim. 771,907. ProbablY,however. the point made counsel is not good; for section 5392, though one of longstandirig, was'reaffirmed in the Revision of 1874, and for all questions of validityand extent may be taken as of later date than the special act of 1857. The two, any way, are to be considered together, and both will
stand. unless there Is a manifest repugnancy between their provisions, or it (}an be said that obviously one, was intended as pro tanto a substitute for the other. It is unnecessa.ry to copy either of these counts in full. n seems to me clear that the ,first eight are good under sections 5392 and 5393, and the other eight good under the special act of 1857, taken in connection with section 5393. !tis objected that in the last eight counts, there is no specific averment that the register and receiver were officers competent to administer an oath. This is unnecessary, for section 5 in terms refers, to an affidavit made or taken before any register or receiver. As by another section of the statute the register and receiver are authorized to administer oaths and take affidavits in these land proceedings. the court will take judicial notice of their qualification, and an averment of the fact is unnecessary. So far as the objection of duplicity is concerned, it iii enough to say that, the objection is made too late after verdict and judgment.· U. S. v. Bayaud, 16 Fed. Rep. 376; 1 Bish. Crim. Proc.. . §§ 442, 1282; Whart. Crim·.PI. § 255. Probably, also, the objection would.not have been good if til-ken at an earlier stage of the proceedings. U·.S. v. Fero, 18 Fed. Rep. 901. Again, itjll insisted that in, no count of the indictment is it alleged that the/defendant knew or believed that the parties or any of them would swear to the facts charged to be false. No reasonable objection lies to the sufficiency of either count in this respect. Take the first count. for instance. It charges that the defendant did solicit, sUborn, and procure an unknown person assuming and pretending to be Mary L. Pratt, who then and there took an oath administered by the register; she, the said person, not believing the same to be true, as he the said defendant then and there well knew; ,and that she did take the oath, signed and subscribed the affidavit, not believing it to be true, all of which he well knew. Then it,sets out the substance of the affidavit,and further alleges false, and that she at the time knew it was false; and that wherein it same, solicited, suborned, and procured her to take the he, oath and sign and subscribe the affidavit, well knowing the same to be untrue, and, well knowing that the person falsely personating Mary L. Pratt well knelV the same to be untrue. In other words, the indictment unknown persoq falsely personating Mary L. Pratt made charges that a fa,lse affidavit, knowing that it was untrue; and that he, knowing that and that she knew it was untrue, procured and suborned herto,J;Uakeit. , Sbecommitted perjury, and he, knowing it was perjury, pl,'Qcurred her to commit it. The substance of the crime is fully and clearly stated. Section 1025 of the Revised Statutes is pertinent to a matter orthis kind. It reads: no ,found and presented by a grand jury in any district or other court of tbe, United States shall be deemed sufficjent; nor shall the trial judgment, or imperfection: in matter of form only, which shall not tend to the prejudice of the defendant." ., ' Can anything be clearer than that the defendant knew precisely what he was with, and that there was no doubt or uncertainty in the S. Y. Fero t 18 Fed. Rep. 901. matter.
These are all the matters which I deem it important to notice. I see nothing in the record which justif.r me ininterfering with the judgment, and it must be sustained.
POPE MANUF'G Co.
(Circuit Oourt, N. D. IllinoUi.
April 30, 1888.)
PATENTS FOR INVENTIONS-LIcENSE-UNCONSCIONABLE COVENANTS-SPECIFIC PERFORMANCE.
P., the owner of some 65 patents for improvements in bicycles and tricycles, and engaged in the manufacture of machines covered by those patents, granted a license in June, 1883, to G., who was a similar manufacturer and owned somewhat similar patents. This license covered only two of P.'s pat· ents, and the machines made under them were of an inferior character. By its terms, this license was to expire, as to one patent, in nine months, and as to the other at any time upon written notice from G. ; and nothing was expressed or implied as to any other of P.'s patents. G., desiring to make more perfect machines, applied to P. for licenses under some of his other patents. Gorrespondence passed between the parties, from which it appeared that G.'s only object was to have the terms of his existing licenses widened so as to take in his contemplated improvements. The contract in suit was finally executed in I)ecember, 1884, G. signing it without referring it to a lawyer. Under this licenses contract, which was drawn with much artificiality, G. was under 15 out of the 65 patents of P. until April, 1886. and, lD consideration thereof, he was made to recognize and admit the validity of all, and P.'s title to the same, and also to covenant not to manufacture or sell any machines 'covered by any of the patents after his license ran out or was surrendered. and even after the expiration of all the patents covered by his license. After the license had terminated, P. filed a bil for injunction and account, alleging infringement. Held, that the bill amounted to one for specific performance, and that, under the circumstances, it should be dismissed, the contract being unconscionable. and, in a measure, against pUblic policy.
In Equity. Bill for injunction and account. Before GRESHAM, Circuit Judge, and BLODGETT, District Judge. Coburn « Thacher, for complainant. B. F. Thurston and Offield &; Towle, for respondent. BLODGETT, J. This is a bill inequity whereby the complainant seeks a decree enjoining the defendant from the manufacture and sale of bicycles and tricycles containing certain devices, and for an accounting. The bill charges that complainant on the 1st day of December, 1884, and for a long time prior thereto, was engaged in the manufacture and sale of bicycles, tricycles, and other velocipedes of superior quality, grade, construction, and finish, and was the owner of a large number of patents, the features of which ,were embodied in the construction of such vehicles; that on the 1st day of December, 1884, complainant entered into a contract with the defendant, whereby there was granted to the defendant the right to make, use, and sell, for a certain term therein mentioned, bicycles of 52-inch size, and upwards, of certain grades, style, and finish. and to be sold at a certain price limited by said contract, and embody-